NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formalrevision before publication in the New Hampshire Reports. Readers are requested to notify theReporter, Supreme Court of New Hampshire, One Noble Drive, Concord, New Hampshire03301, of any editorial errors in order that corrections may be made before the opinion goes topress. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us.Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The directaddress of the court's home page is: http://www.courts.state.nh.us/supreme.THE SUPREME COURT OF NEW HAMPSHIRE___________________________Hillsborough-northern judicial districtNo. 2002-592THE STATE OF NEW HAMPSHIREv.DANIEL SMALLArgued: November 5, 2003Opinion Issued: January 16, 2004Peter W. Heed, attorney general (Nicholas Cort, assistant attorney general, on the brief andorally), for the State.Landya McCafferty, assistant appellate defender, of Dover, on the brief and orally, for thedefendant.NADEAU, J. The defendant, Daniel Small, appeals his convictions, following a jury trial inSuperior Court (Barry, J.), on six felony counts of stalking. See RSA 633:3-a (Supp. 2002)(amended 2002); RSA 173-B:9 (2002) (amended 2002). We affirm.The six indictments against the defendant related to incidents allegedly occurring on or aboutOctober 17, 2001, and October 24, 2001. Three indictments, relating to October 17, 2001,alleged that the defendant, having been provided with a protective order issued pursuant to RSA173-B:3, and having previously been convicted of violating a protective order, purposelycommitted the following acts: 1) he abused Donna Small by following her in his vehicle as shedrove from the area near the Hillsborough County Courthouse to Bedford; 2) he approachedwithin one hundred yards of Donna Small with his vehicle as she drove from the area near theHillsborough County Courthouse to Bedford; and 3) he engaged in contact with Donna Small by
gesturing at her with his middle finger. The three indictments relating to October 24, 2001,alleged that the defendant, having been provided with a protective order issued pursuant to RSA173-B:3, and having previously been convicted of violating a protective order, purposelycommitted the following acts: 1) he abused Donna Small by following her in his vehicle as sherode in a car from the area near the Peterborough Police Department to Sandhill Road; 2) heabused Donna’s daughter, Jennifer Small, by following her in his vehicle as she drove from thearea near the Peterborough Police Department to Sandhill Road; and 3) he approached withinone hundred yards of Donna Small with his vehicle as she rode in a car from the area near thePeterborough Police Department to Sandhill Road.The jury could have found the following facts. At the time of the alleged offenses, the defendantwas married to Donna Small. In June 2000, the defendant filed for divorce and Donna obtained arestraining order against him. On October 17, 2001, Donna and the defendant were at theHillsborough County courthouse in Manchester for a trial against the defendant for criminalthreatening and restraining order violations. After the trial, the two left the courthouse, enteredtheir vehicles, and proceeded in opposite directions around the block to the intersection of Granite and Elm Streets. As Donna pulled up to the intersection to take a right onto GraniteStreet, the defendant, heading perpendicular to Donna onto Granite from Lake Avenue, pulled upin front of Donna, stopped, and "gave [her] the finger." After the defendant moved on, Donnaproceeded straight on Elm Street instead of turning right.Donna then decided to stop at a store to buy bread. While in the store, Donna saw thedefendant’s vehicle pass by the store twice. Donna waited a few minutes, left the store, anddrove toward the intersection of Routes 101 and 114. At that intersection, Donna saw thedefendant’s vehicle in front of her. The defendant, seeing Donna in his rear view mirror, turnedaround and gave her "more hand signals." The two then proceeded in different directions at thatintersection.On October 24, 2001, the defendant had visitation with his and Donna’s son. The pre-arrangeddrop-off site after visitation was the Peterborough police department parking lot. Donna, herdaughter Jennifer, and Rebecca, the daughter of Donna and the defendant, arrived at the policestation first that evening in Jennifer’s car. The defendant arrived, dropped off his son, and leftwithout incident. Jennifer waited a few minutes and then left in the same direction the defendanthad gone. Donna saw the defendant in his vehicle in a parking lot with the vehicle’s headlightsoff. As Jennifer’s car passed, the defendant turned on his headlights and pulled out behind her.The defendant followed Jennifer’s car less than a car’s length behind her with his high beams on.Jennifer proceeded onto Route 202 with the defendant still following. Although she wouldnormally have stayed on Route 202 until it intersected with Route 136, she took an earlier turnonto Sandhill Road to try to get away from the defendant. The defendant also turned ontoSandhill Road, which would not have been the fastest way to return to his home. When Donnaheld up her cell phone to call 911, the defendant turned around and headed back onto Route 202.The defendant argues that the trial court erred by denying his motion to dismiss the indictmentson the grounds that the temporary restraining order had expired by the time the charged incidentsoccurred. The defendant acknowledges that RSA chapter 173-B contains no express time limit
for temporary restraining orders, but contends that RSA 173-B:5, VI (2002) restricts the durationof final orders to no more than a year unless extended by court order. The defendant then arguesthat "it follows from the statute as a whole, that a ‘temporary’ order must have a shorter durationthan a ‘final’ order." Thus, according to the defendant, the temporary restraining order issuedagainst him on June 26, 2000, must have expired by June 26, 2001, prior to the chargedincidents. As there was no valid restraining order in effect at the time of the charged incidents,the defendant argues, his convictions must be overturned.The State argues, and the trial court found, that the restraining order was extended by thesuperior court pursuant to an agreement by the parties. The temporary order issued by theGoffstown District Court on June 26, 2000, contained a notice of hearing set for July 11, 2000.See RSA 173-B:3, VII (2002). On that date, the district court issued an order providing in part:Temporary Orders continued. The Court understands that Petitionfor Divorce is going to be filed in the Superior Court. Counsel forthe respondent is to file, with this Court, a copy of said pleadingswithin thirty days. Once the Petition for Divorce is filed with theSuperior Court this case is to be transferred to HillsboroughCounty Superior Court.In November 2000, Donna and the defendant filed in superior court an amended domesticviolence order that they both had agreed to and signed. It provided in part that "[t]he domesticviolence order entered by the Goffstown District Court on July 11, 2000 shall remain in fullforce and effect" except with respect to its visitation conditions. The marital masterrecommended approval of the proposed order on November 27, 2000, and the court approved themaster’s recommendation on November 28, 2000. Following a hearing, a final domestic violenceorder was issued by the superior court on January 28, 2002.Nothing in the record indicates that the defendant ever appealed the temporary order or moved tohave it terminated. Indeed, he agreed that it would remain in force. He now, however, seeks tocollaterally attack the order in this proceeding. We have recognized that such collateral attacksare generally not permitted:The general underlying premise is that a person subject to aninjunctive order issued by a tribunal with the requisite personal andsubject matter jurisdiction should be bound to pursue any objectionto the order through the constituted judicial process available forthat purpose. Such an individual has the means to press anymeritorious claim of right without first acting in violation of apresumptively valid ruling that ostensibly binds him. As aconsequence, a court trying a charge of such a violation is justifiedin refusing to entertain a defense in the form of a collateral attack on the order, the subject of which could have been raised andlitigated through the judicial process prior to the violation charged.
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